Stay Applications to Individual Justices

As Bill notes, Jonathan Green was executed after the U.S. Supreme Court denied a stay of execution. See also my prior post. Actually, there were three stay applications, which brings up an interesting little quirk of Supreme Court procedure and history.

As is common in execution-eve cases, Green had filed petitions with both
the state courts and the federal courts, and they were decided close
enough in time that both were within the 90-day window to petition the
U.S. Supreme Court.

Congress vested the power to stay a lower
court's judgment, while the Supreme Court considers the certiorari
petition, in individual justices. See 28 U.S.C. §2101(f). However, the
Supreme Court settled back in 1807, in a case arising out of the Aaron Burr conspiracy, that a power given by statute to one justice may be exercised by the court as a whole.

So
for stays of execution, the application is made to the justice assigned
to the particular circuit (Justice Scalia, for the Fifth), and that
justice routinely refers it to the whole court, except in emergencies.
The standard procedure was followed for application 12A343, seeking a stay in order to petition for review of the U.S. Court of Appeals decision. Justice Scalia referred the application to the full court, and it was denied.

Next, Green's lawyers filed another application, 12A346, along with a certiorari petition, 12-6652,
seeking review of the Texas Court of Criminal Appeals' decision. This
time Justice Scalia just denied it himself. After all, the full court
had just ruled on the substantially the same issues in the same case.

If
the application is denied by one Justice, nothing in the statute or
rules prevents an application being made to another Justice or
Justices. Rule 22.4 provides that unless action on the application is
by law restricted to the Circuit Justice or is out of time, the party
may renew the application to any other Justice selected by the party.
But the Justices are reluctant to encourage such shopping around by
granting what has already been denied, and rarely grant such
applications. Rule 22.4 expressly states that "[e]xcept when the denial
is without prejudice, a renewed application is not favored."

Justice Ginsburg referred the application to the full court, and it was denied.